R. v. Brown, 2023 ONCJ 431

ONTARIO COURT OF JUSTICE CITATION: R. v. Brown , 2023 ONCJ 431 DATE: 2023 10 04 COURT FILE No.: 21-40000539 Toronto Region BETWEEN: HIS MAJESTY THE KING — AND — Ronald BROWN Before Justice Cidalia C.G. Faria Heard on April 27, 28, July 20, 26, 2023 Reasons for Judgment released on October 4, 2023 Arian Khader....................................................................................... counsel for the Crown Elham Jamshidi ……………………………counsel for the defendant Ronald BROWN Faria J.: I. Overview [ 1 ] Ronald Brown and Amanda Beard were together for 18 years and had a daughter. They separated in 2020. Ms.

Beard started dating Sean Roberts in 2021. Mr. Brown believed that Mr. Robert’s presence in Ms. Beard’s home was aggravating his teenage daughter’s mental health issues. [ 2 ] It is alleged that on the afternoon of December 30, 2021, when Sean Roberts arrived at his building, he saw Mr. Brown get out of his car and approach him with a baseball bat. Mr. Brown was upset, allegedly tapped the bat on the ground while he spoke and lifted his shirt to show Mr. Roberts the butt of a handgun. Mr.

Brown is charged with two counts of carrying a concealed weapon, two counts of possessing a dangerous weapon, and one count of assault with a weapon. [1] [ 3 ] The Crown called both Ms. Beard and Mr. Roberts and filed text messages Mr. Brown sent Ms. Beard. He submitted their evidence was credible and reliable, Mr. Brown’s evidence should be rejected, and he has met his onus. [ 4 ] The Defence takes the exact opposite view. Neither of the Crown’s witnesses were telling the truth. Mr. Brown brought no weapons with him when he went to converse with Mr. Roberts, and Mr. Brown should be acquitted of all charges. II.

Legal Principles i. General Principles [ 5 ] As in every criminal case, the Defendant is presumed innocent. The onus rests on the Crown to prove the essential elements of each offence beyond a reasonable doubt. The onus never shifts. Reasonable doubt is a doubt based on reason and common sense which

must be logically based upon the evidence or lack of evidence. [2] ii. Credibility & Reliability [ 6 ] The central issue in this case is the credibility and reliability of each witness. [ 7 ] Credibility relates to whether a witness is speaking the truth as she/he/they believe it to be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall, and recount the events must be assessed.

A credible witness may give unreliable evidence. [3] Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. [4] The credibility and reliability of a witness must be tested in the light of all the other evidence presented. [5] [ 8 ] In assessing each witness’ testimonial account, I must consider its internal consistency, its consistency with previous accounts, the significance of any inconsistencies, a witnesses’ interest in the outcome of the case if any, and whether an account is inherently logical. [ 9 ] To assess reliability, I must consider the circumstances of the observer, the recollection of events over time, the intentional or unintentional tainting by other sources of information, a witness’ mental capabilities and limitations if any, their level of sophistication, and to a lesser degree the witness’ testimonial demeanour, among other things. [ 10 ] In assessing competing evidence, I cannot compare each account and decide which account I believe. [6] I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence.

Moreover, I can accept some, all, or none of a witness’ evidence. Frailties and/or inconsistencies in a witness’ evidence do not necessarily mean their evidence should be rejected [7] and I must consider the totality of the evidence to determine proof beyond a reasonable doubt. [ 11 ] The leading applicable case on credibility and guiding my analysis provides the following test: [8] • First, if I accept Mr. Brown’s evidence, I must acquit him. • Second, even if I do not accept Mr. Brown’s evidence, if it leaves me with a reasonable doubt, I must acquit him. • Third, even if Mr.

Brown’s evidence does not raise a reasonable doubt, I must consider all the evidence to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offence. iii.

The Offences [ 12 ] For ease of reference, the relevant parts of the offences charged are as follows: • A weapon means anything used, designed to be used, or intended to be used for the purpose of threatening or intimidating a person. • Every person commits an offence who carries, or possesses a weapon, an imitation weapon, for a purpose dangerous to the public peace of for the purpose of committing an offence (s. 88(1)). • Every person commits an offence who carries a weapon concealed, unless the person is authorized under the Firearms Act to carry it concealed (s. 90(1)). • A person commits an assault when he/she/they attempts or threatens, by

an act or a gesture, to apply force to another person, if he/she/they has, or causes that other person to believe on reasonable grounds that he/she/they has, present ability to effect their purpose (s.265(1)(b)) and carries, uses, or threatens to use a weapon or an imitation thereof (s.267(a)). III. Evidence i. Amanda Beard [ 13 ] Ms. Beard testified that she was living with her teenage daughter, Asia, and co-parenting with Mr. Brown after their separation in 2020. She became involved with a new partner, Mr. Roberts in mid-2021 until early 2023. [ 14 ] In the month of December 2021, Ms.

Beard received several text messages from Mr. Brown about her new boyfriend as follows: 9:10 a.m. “That’s fine my daughter lives there I need to be there for her every weekend.” 9:12 a.m. “This goes three ways you end it he ends it or I think you can figure out the third” 9:14 a.m. “Let him know he is going to have a visitor don’t want him to be caught off guard.” She responded at 9:16 a.m. Will do [9]

[ 15 ] Another text message exchange between them that same month reads: Ms. Beard 4:24 p.m. I will call the police. Don’t come here Ms. Beard 4:25 p.m. I am done with everything. Trust me you win as always Mr. Brown 4:25 p.m. Fuck you stupid bitch Mr. Brown 4:26 p.m. That n---- is not sleeping there tonight I just left his house will be going back Mr. Brown 4:27 p.m. He is going to get fucked up by you or at his building Ms. Beard 4:28 p.m. Ok whatever. I actually don’t care Mr. Brown 4:28 p.m. Good neither me [10] Ms. Beard: ? Either way do you want [ 16 ] On December 30, 2021, Ms.

Beard received a call from Mr. Roberts telling her he had had an encounter with Mr. Brown. She went to the police station and provided these text messages to the investigator. [ 17 ] When asked about what she took these texts to mean, Ms. Beard testified Mr. Brown was “just threatening to cause trouble”, she did not know “what he was planning on doing” and that he was “being a nuisance or wanting to be, intimidating in my opinion.” [ 18 ] She testified she had seen Mr. Brown at Mr. Robert’s address on December 23, 2021, at about 2:00 p.m. when she was walking out of her car.

He had told her she should be home minding her child. She did not say anything to him at the time. She was shocked. She testified she felt like she was being stalked and was concerned as she did not know “his mindset or what he was capable of.” [ 19 ] In cross-examination, Ms. Beard testified: • The end of her marriage “was like escaping prison for me. It was like winning the lottery” and the separation was not always amicable as Mr. Brown would provoke her. • In 2021, their daughter was having “teenage issues” and would lock herself in her room. Disputes deteriorated to screaming. She told Mr.

Brown about these issues and asked for his help. • She and Mr. Brown had different parenting styles and they argued at times about how to deal with their daughter. • Mr. Brown spoke to their daughter regularly and she went to his home whenever he wanted her to. • Mr. Brown’s “go-to” position was that Mr. Robert’s presence was affecting their daughter. • She never fought with her daughter in front of Mr. Roberts, her daughter did not act out when he was present, and she had never expressed any discomfort with him. There was never any animosity or issues between Asia and Mr.

Roberts. • Asia would not come out of her room on Christmas Day. She went to see Mr. Roberts and left Asia behind as she did not want to go. • The text messages filed were part of larger arguments where she and Mr. Brown communicated via phone calls, voice messages and texts. • She had never seen Mr. Brown with a gun and did not “even know where he would even know where to get that”. ii. Sean Roberts [ 20 ] Mr. Roberts testified he lived in an apartment building in a cul-de-sac in the north end of Toronto. On December 30, 2021, he stopped to pick up a chicken dinner on his way home from work. He saw Mr.

Brown, his girlfriend’s ex-husband, parked on the street. By the time he exited his own vehicle, Mr. Brown was walking up the driveway toward him. He “slid a baseball bat out of the sleeve of his hand”. Mr. Brown asked, “Do you know who I am?” [ 21 ] Mr. Roberts asked, “What is this all about” and testified Mr. Brown told him he was the cause of his daughter misbehaving and why he was not with his wife. “At that point I am just about wanting to diffuse the situation because he has a bat in his hand. I have my dinner in my hand.” Mr.

Brown started to speak loudly, and not wanting his neighbours to hear through their windows, and thinking the front entrance might have cameras to capture the interaction, he asked Mr. Brown to walk to the front of the building. [ 22 ] They spoke for about 10-15 minutes during which time Mr. Brown tapped his bat on the ground. His voice was loud, his body language aggressive, and he was not calm. The grey-silver baseball bat sounded to be aluminum and was used. He did not recognize the brand. [ 23 ] Mr. Roberts testified he tried to diffuse the situation by telling Mr.

Brown “This is not going to help his situation with his daughter because if this turns out the way it looks like you wanted it to turn, because you came with a baseball bat in your hand, that is going to be another child without her father around”. Mr. Brown continued to accuse him of being a problem and questioned his

whereabouts at Christmas. [ 24 ] When they reached the front, “he expressed to me that he came here ‘prepared to deal with this today’. At that point he lifted his jersey – his trouser, and I saw a gun butt in his waist.” The handle was black, and it looked like a real gun to him. Mr. Roberts then testified he turned away and walked into his building while Mr. Brown went to his car. [ 25 ] He testified that during the conversation time felt frozen, a feeling he had never encountered before, and then afterward, he felt panic and scared. “First I called Amanda to let her know what just transpired.

After that, I called the force. I called the – the police. Well, to be honest with you, I had a drink first. I drank a beer first.” [ 26 ] In cross-examination, Mr. Roberts testified: • He knew Ms. Beard and her daughter had issues, but he was never present during any disputes, did not want to be involved, and did not get between “mom and daughter.” • He was not at Ms. Beard’s on Christmas Day and Ms. Beard went to his place on Boxing Day. • The conversation between the two men was not civil. Mr. Brown testified “there’s no reason to have a bat in your hand” if Mr. Brown just wanted to talk to him. • Mr.

Brown never offered him his phone number. [ 27 ] After having testified in-chief that the very last thing Mr. Brown did was show him the butt of a gun and say he was prepared to deal with the issue, Mr. Roberts was confronted with his statement to police that after having been shown the butt of the gun, he continued to speak to Mr. Brown and say Mr. Brown needed to deal with his family and to calm down. He had not turned immediately away. [ 28 ] Faced with this inconsistency as to what exactly was the content of the very last part of their interaction, Mr.

Roberts, readily agreed that was an inconsistency, and acknowledged his statement to the police was the truth while his testimony in court was incorrect on that point. iii. Ron Brown [ 29 ] Mr. Brown confirmed much of what Ms. Beard and Mr. Roberts testified to, but for having a baseball bat and a gun in his waistband on December 30, 2021. [ 30 ] Mr. Brown testified he believed his daughter was having trouble with the separation and had told him Mr. Roberts’ presence in her home made her uncomfortable. [ 31 ] Mr. Brown confirmed he sent the texts to Ms.

Beard during arguments on December 8 and 10, 2021 as part of communications by phone, voice mail and texts. He was angry with Ms. Beard because she was not doing enough for their daughter and would not stop Mr. Roberts from visiting her home. [ 32 ] During the first argument, Mr. Brown testified that the third option he was referring to, was not that he would end her relationship with Mr. Roberts himself as put to him by the Crown, but rather that he would take Ms. Beard to court for custody of his daughter. [ 33 ] During the second argument, Mr.

Brown testified “I’m so upset, I’m so mad at her, I started swearing at her. And then I continued on text. I said look, ‘fuck you, you’re stupid’ blah blah blah.” He “got out of control” when said what he said next as he had never gone to Mr. Roberts’ house. He was just frustrated with Ms. Beard. [ 34 ] Mr. Brown testified he did not intend to hurt Mr. Roberts and insisted he “had no animosity towards” him at all. [ 35 ] Mr.

Brown testified that on Christmas Day, his daughter called him distraught, crying and screaming on the telephone, telling him she had locked herself in her room and would not come out to eat or open presents because Mr. Roberts was in the home. [ 36 ] Mr. Brown wanted to go pick up his daughter, but Ms. Beard said no. He did not speak to her thereafter because he “was not getting anywhere with her.” [ 37 ] Then, Mr. Brown, testified that on December 30 th , he was in the area where Mr.

Roberts lives, having coffee with a friend at about 3 p.m. when he “hopped into his car” and “I’m like saying, you know what, let me just drive over to that area, by chance maybe I’ll run into him and I can have a conversation with him.” [ 38 ] As there was only one entrance in and out of the street, and he did not know exactly which building Mr. Roberts lived in, Mr. Brown parked so he could see all the vehicles coming and going into the street. [ 39 ] He testified he thought he would “stick around for 10 minutes, if I run into him, I run into him, if not, I know.

I just go home.” He was waiting about 8 minutes when Mr. Roberts drove into the street. [ 40 ] Mr. Brown testified he got out of his car and was “just strolling. Taking a stroll down towards him to talk to him.” He said, “sorry to disturb you” and told Mr. Roberts he was there to talk about his daughter. It was a “cordial conversation” where he explained

what was going on between his daughter and her mother, and how he thought it was because Mr. Roberts was around. So, Mr. Brown offered Mr. Roberts his cell number and asked Mr. Roberts to give him a “heads up” when he was going to see Ms. Beard, so he could take his daughter away, “or any kind of help” that Mr. Roberts could give him. [ 41 ] He testified the men spoke for about 10-15 minutes. Mr. Roberts was concerned about the neighbours hearing and they walked to the entrance of the building. Mr. Roberts did not want to be involved in the situation and so turned and walked away into the building. Mr.

Brown went to his car and drove away. He testified there was no bat and there was no gun. [ 42 ] In cross-examination Mr. Brown testified: • He plays baseball and has a grey-silver aluminum baseball bat that is used with scuff marks on it. • He did not want to break up Ms. Beard and Mr. Robert’s relationship. • He did not really mean that he would “visit” Mr. Roberts’ or that he would “fuck him up”. He just texted that to “get her (Ms. Beard) to somewhat tweak the way she was bringing him around my daughter.” • He believed the texts would “make her think about” bringing Mr.

Roberts around his daughter “at the very least” as he wanted to “get a response out of her basically.” • He was “desperate” to speak to Mr. Roberts on December 30 th . • He was “hoping he (Mr. Roberts) was actually going to take my phone number and he would send me a text, say, look, listen I’m going down to Mississauga this weekend, I’m going to hang out at Amanda’s, so I don’t know if you want to come and take Asia. That was my hope, my ultimate hope. That he was just going to give me a heads up when he was going over there.” [ 43 ] When the Crown suggested to Mr.

Brown that he would not be able to take his daughter every single time Mr. Roberts visited Ms. Beard, Mr. Brown testified: “I could take Asia any point in time. I have a really great custody situation when it, when it comes to my daughter”. He has “joint custody”, and, as “he (Mr. Roberts) usually went over there on weekends, so I’m always available on the weekend to get my daughter”. IV. Analysis [ 44 ] While testifying Ms. Beard was easily frustrated, at times argumentative, at other times sarcastic, and occasionally rhetorical.

She became quickly exasperated with the repeated characterization of her relationship with Mr. Brown as “amicable” when clearly, in her view, it was not. She called him a narcissist and was not surprisingly offended and indignant when cross-examined about bringing “guys around” after her separation. [ 45 ] However, Ms. Beard’s demeanour did not detract from the fact that she was not shaken on the main point of her testimony: Mr. Brown tried to intimidate and threaten her. The texts she received were rude, hostile, violent and supported her perception that Mr.

Brown was “toxic” at times, that he tried to “provoke” her, “cause trouble” and “intimidate” her as he in fact threatened to hurt her boyfriend. [ 46 ] I accept Ms. Beard’s testimony as credible and reliable. [ 47 ] Mr. Roberts testified in a simple, straight-forward, detailed, and even-handed manner. He was told by Ms. Beard she was having issues with her daughter, and he stayed out of the way. He did not even appear to know that Ms. Beard and Mr. Brown had issues. [ 48 ] Standing at 5”11, weighing about 155 pounds, holding his chicken dinner, he faced Mr.

Brown, standing at 6”2, weighing about 235 pounds holding a baseball bat. As he put it, he “did not want to be the victim of that baseball bat”, so he cleverly diffused the situation with empathy, logic, and persuasion, stating that Asia would lose the presence of her father in her life if he used the bat. [ 49 ] Mr. Roberts was also frank. Though he described the bat in detail, he testified he only saw the black handle of what he believed to be a gun. He did not see the whole gun. He did not know if it was real. He only saw if for a few seconds. [ 50 ] The essence of Mr.

Roberts evidence was not shaken on cross-examination either. There was one inconsistency, the exact timing of when Mr. Brown lifted his shirt during their conversation. This is a minor divergence that goes to his reliability on that point and not his credibility, particularly as he was sincere in his acceptance of the discrepancy. [ 51 ] Mr. Brown was not a credible witness. His testimony was inconsistent, disingenuous, and implausible. [ 52 ] First, Mr. Brown testified that the “third” option he was referring to in his texts to Ms. Beard on December 8 th , was not that he would end the relationship with Mr.

Roberts, if Ms. Beard or Mr. Roberts did not end it, but rather that he would take Ms. Beard to court for custody of his daughter. [ 53 ] However, Mr. Brown repeatedly testified he had a great arrangement with Ms. Beard. He had joint custody of his daughter. He had access whenever he wanted. Asia went to his home whenever he wanted her to. He knew Mr. Roberts went to Ms. Beard’s on weekends and could take her every weekend. There was therefore no need to threaten to take Ms. Beard to court for custody, as pursuant to both Mr. Brown and Ms.

Beard, he already had the perfect arrangement that allowed him full access to Asia whenever he chose to exercise it.

[ 54 ] Second, Mr. Brown insisted he did not have any animosity toward Mr. Roberts, however, his texts and his actions are to the contrary. “Let him know he is going to have a visitor don’t want him to be caught off guard’ and “He is going to get fucked up by you or at his building.” His choice of words and threat of violence demonstrate an obvious hostility towards Mr. Roberts. [ 55 ] Third, Mr. Brown tried to portray his relationship with Ms. Beard as “amicable”. However, the enmity between them was obvious as they testified. Ms. Beard was honest about that. Mr. Brown was not. Mr.

Brown tried to portray himself as an enlightened parent, while she was “old school” and dominant. He was simply concerned about his daughter, but she was not doing enough. He was only concerned about the impact of Mr. Roberts’ presence on his daughter, meanwhile he is threatening to beat up Mr. Roberts even when Mr. Roberts is not at Ms. Beard’s. [ 56 ] Finally, Mr. Brown’s narrative about the day of the allegations is not credible. It is replete with coincidences and characterizations that when put together defy plausibility. Some of them are: • That he did not know where Mr.

Roberts lived when he sent threatening texts saying he did know his address, but then learned what street Mr. Roberts lived on just before he happened to be having coffee with a friend in Mr. Roberts’ neighbourhood, an area he had never gone to. • That he parked on the cul-de-sac in at 3 p.m. on Thursday only because he “hoped” to run into to Mr. Roberts when the week before on a Thursday at 2 p.m. Ms.

Beard had seen him there. • That it was his daughter’s experience on Christmas Day that fuelled his desperation, though he had already expressed the intensity of his hostility about their relationship weeks before via text. • That he planned to wait only 10 minutes and Mr. Roberts showed up within the first 8 minutes. • That though he was desperate, upset, and blaming Mr. Roberts for his daughter’s mental status, he just “strolled” up to Mr.

Roberts, apologized, and cordially asked for his help. • That the help he was asking for and hoping to get, was that his ex-wife’s boyfriend would text him before he went to see her. [ 57 ] I do not accept Mr. Brown’s evidence. I find Mr. Brown was angry with both Ms. Beard and Mr. Roberts. He wanted their relationship to end. His belief, accurate or not, that the relationship negatively impacted his daughter fuelled his sense of entitlement to control Ms. Beard. It infuriated Mr. Brown that Ms. Beard would not stop seeing Mr. Roberts.

So much so that he freely admitted to threatening her to “tweak” her behaviour. [ 58 ] Though I do not accept Mr. Brown’s evidence, I must examine whether it raises a reasonable doubt. It does not. [ 59 ] Counsel made much of the three versions of events on Christmas Day. Ms. Beard testified she was home. Her daughter locked herself in her room, and then she went to Mr. Roberts place. Mr. Roberts testified he was with family, and Ms. Beard did not go to his place until Boxing Day. Mr. Brown testified his daughter told him Mr. Roberts was at her home.

These versions of events are not of much significance when the relevant point – that Asia locked herself in her room on Christmas Day is not disputed and that is what informed Mr. Brown’s mental state on December 30 th . [ 60 ] I now turn to the totality of the evidence I do accept to determine if each of the charges have been proven beyond a reasonable doubt. [ 61 ] I accept Mr. Roberts evidence that Mr. Brown approached him with a silver baseball bat hidden up his sleeve, that he let it slide down to the ground, he held it by his side, and tapped it on the ground as he accused Mr.

Roberts of being the cause of his daughter’s troubles. Mr. Brown was loud, aggressive, and intentionally used the bat as a weapon to threaten and intimidate Mr. Roberts. Mr. Roberts’ evidence never waivered. He recounted the events in a detailed manner, consistently, and logically. I find his testimony credible and reliable. [ 62 ] I do not make the same finding in relation to his evidence regarding the “black handgun.” [ 63 ] Mr. Roberts only saw what he believed to be the butt of a black handgun for a few seconds if that.

He was not sure it was a gun, only that he believed it to be, and that it “looked real” to him. Though he was a credible witness, on this point, his evidence is not sufficiently reliable. Mr. Brown may have had, or even likely had an item that looked like a gun in his waistband for the purpose of intimidating Mr. Roberts and showing him, he was “prepared” to deal with the “situation”, however, that is not the standard the prosecution must meet. V. Conclusion [ 64 ] I find Mr.

Brown guilty of counts 1, 2, and 3, carrying a concealed weapon, possession of a weapon and assault with a weapon, namely a silver baseball bat, contrary to ss. 90(1), 88 (1), and 267(

a) respectively of the Criminal Code . [ 65 ] I find Mr. Brown not guilty of counts 4 and 5 in relation to a black handgun. Released: October 4, 2023

Signed: Justice Cidalia C.G. Faria [2] R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 at ¶ 39.